Executive Summary: Key Legal and Evidentiary Issues

• Disciplinary sanction imposed in 2023 on Mr. Abderrahim Touri, a federal public servant working in food services at a National Defence garrison, alleged to be an unlawful reprisal under the Canada Labour Code and contrary to section 147.

• Series of procedural decisions by the Commission, including ordering a virtual hearing, refusing an in-person hearing, and rejecting various pre-hearing requests (regarding uniforms, minutes, recording, documents and a site visit), challenged as unfair and indicative of bias.

• Allegations of breach of procedural fairness based on the refusal of recusal, the timing of reasons on that refusal, the conduct of a hearing in Mr. Touri’s absence after warning, and the approximately six-month delay before written reasons issued.

• Charter section 15(1) equality claims grounded in the Commission’s refusal to forbid witnesses from wearing military uniforms and its refusal to provide minutes of the pre-hearing conference, contrasted by Mr. Touri with the practice of a Quebec administrative body.

• Determination that the Commission’s dismissal of the complaint was reasonable because Mr. Touri bore the burden of proof under section 133 of the Canada Labour Code and presented no testimony, no witnesses and no documentary evidence to establish a contravention of section 147 or any causal link.

• Final disposition rejecting the application for judicial review, awarding lump-sum costs of $2,000 against Mr. Touri, and amending the style of cause to designate “Conseil du Trésor (ministère de la Défense nationale)” as defendant.

Facts of the case

Mr. Abderrahim Touri is an employee in the federal public service. He is assigned to the food services of a garrison of the Department of National Defence. In 2023, he received a disciplinary sanction. In his view, this sanction constituted a reprisal because he had exercised his rights under the Canada Labour Code, R.S.C. 1985, c. L-2, and therefore contravened section 147 of the Code, which is reproduced in the annex. He filed a complaint with the Federal Public Sector Labour Relations and Employment Board (the Commission) under subsection 133(1) of the Code, also reproduced in the annex. The judgment notes that these provisions apply to public service employees such as Mr. Touri via section 240 of the Loi sur les relations de travail dans le secteur public fédéral.
The Commission informed the parties that the complaint hearing would be held virtually. Mr. Touri requested an in-person hearing. The Commission refused and provided written reasons. It explained that he had not given convincing reasons justifying an in-person hearing or demonstrating any prejudice arising from a virtual hearing. It also informed him that holding a virtual hearing was consistent with the Commission’s “Lignes directrices sur le choix du mode d’audience”, which were provided to him, and reassured him that virtual hearings respect transparency, impartiality and the right of each party to be heard.

Procedural steps before the Commission

At a pre-hearing conference, Mr. Touri made several procedural requests to the Commission: (1) to prevent witnesses from wearing their military uniforms; (2) to allow production of minutes of the pre-hearing conference and recording of the hearing; (3) to order a colleague to bring to the hearing proof of citizenship and his employment contract; and (4) to visit Mr. Touri’s workplace. The Commission rejected these requests. During the same pre-hearing conference, the Commission also explained to Mr. Touri that he bore the burden of proving that his complaint was well-founded.
After the pre-hearing conference, Mr. Touri brought a motion asking that the commissioner assigned to his complaint recuse himself. He relied on the rejection of his procedural requests, the commissioner’s statement about the burden of proof, and the fact that the commissioner had previously worked as legal counsel for two national courts of appeal. The Commission dismissed the recusal request “with reasons to follow” and advised the parties that the hearing would proceed as planned.
A few days before the hearing, Mr. Touri asked the Commission to stay the proceeding until the Federal Court of Appeal ruled on the application for judicial review he had filed against the refusal to recuse. The Commission refused to stay the proceeding. It also informed Mr. Touri that if he did not attend the hearing, his complaint could be dismissed for failure to present the evidence required in support of it.
The hearing took place on the scheduled date, but Mr. Touri did not appear. The Commission dismissed his complaint and, six months later, issued reasons supporting the dismissal of the complaint, the denial of the stay request, the rejection of the recusal motion and, thereby, the rejection of his preliminary requests.

Alleged breaches of procedural fairness

Before the Federal Court of Appeal, Mr. Touri argued that the commissioner violated his right to procedural fairness by refusing to recuse himself, by not immediately providing reasons for that refusal, by denying him the right to be heard and by rendering a decision after an unreasonable delay. The Court rejected these arguments.
On bias, the Court accepted that a reasonable apprehension of bias is a ground for recusal and referred to the Supreme Court of Canada’s decision in Bande indienne Wewaykum c. Canada. It reiterated that such a concern must be that of a reasonable and well-informed person and that strong evidence is required because there is a strong presumption of judicial impartiality, citing Commission scolaire francophone du Yukon, district scolaire no 23 c. Yukon (Procureure générale) and Collins v. Canada (Attorney General). The Court held that there was no such evidence in this case and that a reasonable and well-informed person would not have feared that the Commission was biased.
The Court stressed that the fact a decision-maker refuses a party’s requests or reaches unfavourable conclusions, even several such decisions, does not in itself give rise to a reasonable apprehension of bias. A reasonable and well-informed person would understand that one or more unfavourable decisions may be justified in light of the facts and the law, as noted in Collins.
Regarding the choice of hearing format, the Court noted that paragraph 20(c) of the Loi sur la Commission des relations de travail et de l’emploi dans le secteur public fédéral empowers the Commission to order that a hearing be held virtually and referred to the Commission’s reasons and to Ghafari c. Canada (Procureur général). It also stressed that the refusal to hold an in-person hearing was consistent with the Commission’s Guidelines on the choice of hearing mode.
Concerning the refusal of his other procedural requests, the Court recalled that, as a general rule, an administrative tribunal such as the Commission controls its own procedure and that procedural choices fall within its discretion. It cited section 20 of the Loi sur la Commission des relations de travail et de l’emploi dans le secteur public fédéral and several decisions, including Baker c. Canada (Ministre de la Citoyenneté et de l’Immigration), Maritime Broadcasting System Limited c. La guilde canadienne des médias and Gal c. Canada (Agence du revenu). The Court noted that the Commission justified each of its refusals in light of the circumstances and applicable law. For example, in relation to the production of minutes and the recording of the hearing, the Commission relied on its “Guide sur les plaintes – santé et sécurité au travail”, which states that minutes are generally not produced and hearings are not recorded, and on case law distinguishing situations where recording is justified from those where it is not. The Court recalled that the absence of a recording or transcript of the evidence is common in labour matters and cited Turner c. Canada (Procureur général), Northern Inter-Tribal Health Authority Inc. c. Yang and Amer c. Shaw Communications Canada Inc.
On the comment about the burden of proof, the Court noted that the Commission explained to Mr. Touri that the burden was on him in order to help him prepare because he was representing himself. The Court observed that this explanation was consistent with its own jurisprudence, in particular Anderson c. IMTT-Québec inc., which held that concluding that the burden in a context such as this rests on the complainant follows from a reasonable interpretation of sections 133 and 147 of the Code. The Court found it difficult to see how such an explanation could give rise to a concern about bias.
Regarding the commissioner’s previous roles, the Court held that the fact that he had worked as legal counsel for two national courts of appeal before becoming a commissioner did not by itself prove bias. To rebut the presumption of impartiality, Mr. Touri had to show circumstances such that the commissioner ought to have recused himself, as explained in Bande indienne Wewaykum, and he had not done so. As for the fact that the commissioner had represented the Department of National Defence in 2006, before becoming a commissioner, the Court pointed out that Mr. Touri had not raised this issue before the Commission. It cited International Longshore and Warehouse Union – Canada c. British Columbia Maritime Employers Association for the principle that a party who alleges a breach of procedural fairness must raise it at the first opportunity—here, before the Commission—or else cannot raise it later on judicial review. The Court added that even if the prior representation were considered, 19 years had passed between that representation and the Commission hearing, and, in light of this lapse of time, that fact could not give rise to a reasonable apprehension of bias, referring again to Bande indienne Wewaykum.

Interlocutory nature of the recusal decision, right to be heard and delay

The Court found that the decision not to recuse was an interlocutory decision, not a final one. It did not decide, in whole or in part, any substantive right of the parties and its consequences were not so “immediate and radical” as to call into question the rule of law, following Dugré c. Canada (Procureur général). As a result, that decision could not be the subject of judicial review on its own, since the Commission might still have allowed the complaint. Mr. Touri therefore had to wait until the Commission issued a final decision on his complaint to challenge both that decision and the recusal ruling, in line with C.B. Powell Limited c. Canada (Agence des services frontaliers) and Favel Transportation Inc. v. Canada (Food Inspection Agency). The Court noted that it had already said as much when it dismissed Mr. Touri’s earlier application for judicial review of the recusal decision.
Because judicial review of the non-recusal decision was not available at that earlier stage, there was no utility in Mr. Touri obtaining reasons “immediately” upon the refusal to recuse, as he claimed. The commissioner did have to consider the allegations of bias and rule on the recusal request, but Mr. Touri had to wait until the Commission rendered a final decision on his complaint to argue that, based on those allegations, the process leading to that decision violated procedural fairness, as indicated in Lafond c. Canada (Immigration, Réfugiés et Citoyenneté).
On the right to be heard, the Court held that the Commission had not denied Mr. Touri this right. It had given him the opportunity to be heard and he knew the evidence he needed to answer, as recognised in Chemin de fer Canadian Pacifique Limitée c. Canada (Procureur général). Mr. Touri chose not to attend the hearing and not to present the evidence required to support his complaint. In those circumstances, there was no violation of procedural fairness.
On delay, the Court relied on Law Society of Saskatchewan c. Abrametz, Moodie c. Canada (Procureur général) and Blencoe c. Colombie-Britannique (Human Rights Commission) to reiterate that, for delay in issuing an administrative decision to constitute an abuse of process, it must be excessive and oppressive. The Court concluded that this was not the case here.

Equality rights and Charter arguments

Mr. Touri argued that permitting witnesses to wear uniforms revealed that they held a higher rank than he did and that, by refusing to prohibit witnesses from wearing their military uniforms, the Commission violated his right to equality under section 15(1) of the Canadian Charter of Rights and Freedoms. Section 15(1) is quoted in the judgment. He also argued at the hearing before the Federal Court of Appeal that the Commission’s refusal to provide him with minutes of the pre-hearing conference constituted another breach of his equality rights because, according to him, a Quebec administrative body would have provided such minutes. He produced nothing to support this argument, but the Court observed that section 127 of the Loi sur la justice administrative provides for the preparation of minutes following a pre-hearing conference held by the Tribunal administratif du Québec.
The Court recalled that a claim under section 15(1) requires the claimant to show that the impugned law or state measure (a) creates, on its face or in effect, a distinction based on an enumerated or analogous ground and (b) imposes a burden or denies a benefit in a manner that reinforces, perpetuates or accentuates disadvantage, citing R. c. Sharma. It noted that the jurisprudence recognises that the different nature of an employment does not constitute an enumerated or analogous ground of discrimination under section 15(1), referring to Fraser c. Canada (Procureur général) (as decided by the Federal Court of Appeal, later overturned by the Supreme Court of Canada on other grounds), Thomson c. Canada (Procureur général), the Workers’ Compensation Act, 1983 (T.-N.) reference, Delisle c. Canada (Sous-procureur général) and Health Services and Support – Facilities Subsector Bargaining Assn. c. Colombie-Britannique.
On the alleged inequality stemming from the lack of pre-hearing minutes, the Court held that differences between the procedures of a federal administrative body and those of a provincial administrative body cannot constitute an analogous ground of discrimination within the meaning of section 15(1). It noted that it is generally accepted that province of residence cannot be considered a “personal characteristic” where differences arise in the application of a valid federal law. The Court cited R. c. S. (S.), Siemens c. Manitoba (Procureur général), Droit de la famille — 139 and the commentary in Hogg and Wright, Constitutional Law of Canada. It also stressed that there was nothing before the Court to suggest that the Commission’s procedural rules were not applied uniformly from one province to another. In this context, the Court rejected Mr. Touri’s arguments under section 15(1).

Reasonableness of the Commission’s decision and final outcome

The judgment records that Mr. Touri accepted that, for the Court to intervene in respect of the Commission’s decision dismissing his complaint, he had to prove that the decision was unreasonable, citing Canada (Ministre de la Citoyenneté et de l’Immigration) c. Vavilov. The Commission essentially dismissed the complaint because Mr. Touri bore the burden of proving that the sanction imposed by his employer contravened the Code. Since he did not testify, did not call any witnesses and filed no evidence, he did not prove that he had complied with Part II of the Code or sought to ensure its application, that his employer had taken measures against him that were prohibited by section 147 of the Code, or that there was a link between the measures taken against him and his compliance with Part II or efforts to ensure its application. The Commission referred to decisions including Vallée c. Conseil du Trésor (Gendarmerie royale du Canada), White c. Conseil du Trésor (Service correctionnel du Canada) and Panesar c. Agence du revenu du Canada.
The Court concluded that the Commission’s decision was reasonable because it was based on a coherent and justified line of reasoning in light of the applicable law and the relevant facts, referring again to Vavilov. Mr. Touri therefore did not discharge his burden.
In its conclusion, the Court stated that it would dismiss Mr. Touri’s application for judicial review with lump-sum costs of $2,000. It also allowed the Attorney General of Canada’s request to amend the style of cause but not to designate him as defendant as requested. Relying on rule 303(1)(a) of the Federal Courts Rules and the definitions of “employeur” in section 2 of the Loi sur la Commission des relations de travail et de l’emploi dans le secteur public fédéral, section 2 of the Loi sur les relations de travail dans le secteur public fédéral and Schedule I of the Loi sur la gestion des finances publiques, the Court held that Mr. Touri’s employer is the Conseil du Trésor. It noted that the lieutenant-colonel who imposed the disciplinary measure on Mr. Touri specified that he was acting under powers delegated to him under paragraph 12(1)(c) of the Loi sur la gestion des finances publiques, which grants the Treasury Board various powers, including establishing rules and policies relating to human resources management in the public service and delegating some of those powers. In this context, the style of cause was to be amended to designate “Conseil du Trésor (ministère de la Défense nationale)” as defendant. That amended style of cause is used in the reasons and would be used in the judgment. The application for judicial review was thus dismissed, the Conseil du Trésor (ministère de la Défense nationale) remained the defendant, and it was awarded a fixed amount of $2,000 in costs.